Daily Comment on News and Issues of Interest to Michigan Lawyers

04/17/2013

Galvanizing Posner Opinion In Child Porn Case

It's difficult to be dispassionate about child pornography, but count on Judge Richard Posner to show the way and stimulate debate. The case is U.S. v. Craig, in which the 7th Circuit Court of Appeals dismissed a convicted child pornographer's appeal of his 50-year prison sentence. The facts are abhorrent and Posner concurred in the result, but took the occasion to make a cautionary statement about de facto life sentences (citations omitted):

If the defendant in this case does not
die in the next 50 years he will be 96 years old when released (though
"only" 89 or 90 if he receives the maximum good-time credits that he
would earn if his behavior in prison proves to be exemplary). Maybe 50 years from now 96 will be middle-aged rather than
elderly, but on the basis of existing medical knowledge we must assume
that in all likelihood the defendant will be dead before his prison term expires.

Federal imprisonment is expensive to the government; the average
expense of maintaining a federal prisoner for a year is between $25,000
and $30,000 and the
expense rises steeply with the prisoner's age because the medical
component of a prisoner's expense will rise with his age, especially if
he is still alive in his 70s (not to mention his 80s or 90s). It has
been estimated that an elderly prisoner costs the prison system between
$60,000 and $70,000 a year. ...

The social costs of imprisonment should in principle be compared with
the benefits of imprisonment to the society, consisting mainly of
deterrence and incapacitation. A sentencing judge should therefore
consider the incremental deterrent and incapacitative effects of a very
long sentence compared to a somewhat shorter one. An impressive body of
economic research finds for example that forgoing
imprisonment as punishment of criminals whose crimes inflict little harm
may save more in costs of imprisonment than the cost in increased crime
that it creates. Ours is not a "little crime" case, and not even the
defendant suggests that probation would be an appropriate punishment.
But it is a lifetime imprisonment case, and the implications for cost,
incapacitation, and deterrence create grounds for questioning that
length of sentence.

For suppose the defendant had been sentenced not to 50 years in
prison but to 30 years. He would then be 76 years old when released
(slightly younger if he had earned the maximum good-time credits). How
likely would he be to commit further crimes at that age? As we noted in United States v. Johnson, 685 F.3d 660, 661 (7th Cir.2012),
although persons 65 and older are 13 percent of the population, they
accounted for only seven-tenths of one percent of arrests in 2010. Last
year 1,451 men ages 65 and older were arrested for sex offenses
(excluding forcible rape and prostitution), which was less than 3
percent of the total number arrests of male sex offenders that year. How many can there be who are older than
75?

It is true that sex offenders are more likely to recidivate than other criminals, because their criminal behavior is for the most part
compulsive rather than opportunistic. But capacity and desire to engage
in sexual activity diminish in old age. Moreover, when released, a
sexual criminal is subject to registration and notification requirements
that reduce access to potential victims.

As for the benefits of a lifetime sentence in deterring other sex
criminals, how likely is it that if told that if apprehended and
convicted he would be sentenced to 50 years in prison the defendant
would not have committed the crimes for which he's been convicted, but
if told he faced a sentence of "only" 30 years he would have gone ahead
and committed them? That he would have deemed the expected punishment
cost (roughly, the cost of being imprisoned for 30 years times the
probability of being apprehended and convicted) less than the benefit he
would derive, in satisfaction of his sadistic sexual urges, from
committing these crimes? (There is no indication that he has a
propensity to commit other crimes.) Probably he had no idea what his
punishment was likely to be if he was caught, for the Justice Department
does little to publicize punishment levels for the various federal
crimes.

Sentencing judges should try to be realistic about the incremental
deterrent effect of extremely long sentences. Even unsophisticated
persons tend to discount future costs and benefits. Most people prefer
to receive a dollar today than a dollar a year from now, even if that
future dollar is certain, and likewise they prefer to pay a dollar a
year from now than today. If you face a 50 year sentence rather than a
25 year sentence for some crime you're thinking of committing, you
consider it heavier punishment but probably not twice as heavy; every
year added to the prospective sentence has a lesser deterrent effect
than the preceding year of the sentence because it is added on at the
end.

The Criminal Lawyer takes the Posner bait, responding effectively (at more length than this excerpt) that deterrence is not the point:

There are other purposes of punishment: rehabilitation, retribution,
and retaliation. Rehabilitation isn’t really at issue here, and nobody
in possession of the facts can believe that imprisonment “cures”
anything. And retaliation — the mere striking back at those who have
struck us — is too emotional and visceral to address with any
intellectual prose.

But retribution can be addressed with reason. And it is precisely what is going on in this sentence — indeed, in most sentences.

The judge gave Craig 50 years because that is what he thought these
crimes were “worth.” Their equivalent harm. It’s the old “eye for an
eye” way of thinking, and it’s what most judges and lawyers and even
defendants are thinking about when considering an appropriate sentence.

Comments

Galvanizing Posner Opinion In Child Porn Case

It's difficult to be dispassionate about child pornography, but count on Judge Richard Posner to show the way and stimulate debate. The case is U.S. v. Craig, in which the 7th Circuit Court of Appeals dismissed a convicted child pornographer's appeal of his 50-year prison sentence. The facts are abhorrent and Posner concurred in the result, but took the occasion to make a cautionary statement about de facto life sentences (citations omitted):

If the defendant in this case does not
die in the next 50 years he will be 96 years old when released (though
"only" 89 or 90 if he receives the maximum good-time credits that he
would earn if his behavior in prison proves to be exemplary). Maybe 50 years from now 96 will be middle-aged rather than
elderly, but on the basis of existing medical knowledge we must assume
that in all likelihood the defendant will be dead before his prison term expires.

Federal imprisonment is expensive to the government; the average
expense of maintaining a federal prisoner for a year is between $25,000
and $30,000 and the
expense rises steeply with the prisoner's age because the medical
component of a prisoner's expense will rise with his age, especially if
he is still alive in his 70s (not to mention his 80s or 90s). It has
been estimated that an elderly prisoner costs the prison system between
$60,000 and $70,000 a year. ...